James Bowers v Judicial Commission of New South Wales (No 2)

1. [1]

   By further amended summons filed on 22 April 2021 the plaintiff, James Richard Bowers, seeks judicial review of a decision of the Judicial Commission of New South Wales (“the Commission”) to summarily dismiss a complaint made by him about Hallen J. The complaint arose from family provision proceedings in the Equity Division of this Court. Mr Bowers seeks orders in the nature of certiorari and mandamus in relation to the decision of the Commission of 13 April 2021 on the basis of “perversity”.

2. [2]

   By notice of motion filed on 4 May 2021 and amended on 18 May 2021, the Commission seeks summary dismissal of these proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and an order that Mr Bowers pay its costs.

3. [3]

   The hearing of the notice of motion came before me for hearing on 16 July 2021. Mr Farinha of counsel appeared for the Commission. He relied upon an affidavit of Sophie Maltabarow, affirmed on 4 May 2021 and the exhibit thereto. He also provided written submissions.

4. [4]

   Mr Bowers declined to provide any written submissions prior to the hearing. He did not object to the affidavit of Ms Maltabarow, nor to the 1058-page exhibit to her affidavit. He too relied on that material which contained, inter alia, copies of Hallen J’s judgment as at 20 February and 5 March 2020 and transcript extracts said to reveal excessive judicial intervention by Hallen J during cross-examination and in exchanges with Mr Bowers’ counsel.

5. [5]

   This notice of motion was listed to be heard at the same time as another notice of motion filed by the Commission seeking summary dismissal of separate proceedings brought by Mr Bowers against the Commission. Mr Bowers objected to that course and the two matters were then heard separately and are the subject of separate judgments: see Bowers v Judicial Commission of New South Wales (No 1) [2021] NSWSC 916.

Factual background

1. [6]

   Mr Bowers is the youngest of seven children. He is a qualified solicitor. In 2018 his mother passed away. She left him a one-sixth share of her estate, to be held on trust and distributed at the executors’ discretion.

2. [7]

   By summons filed on 18 October 2018 Mr Bowers brought a claim under the Succession Act 2006 (NSW) for a family provision order from the estate of his mother. He claimed that he was entitled to the entirety of his late mother’s estate.

3. [8]

   Justice Hallen heard the matter on 20, 21 and 27 November 2019. Judgment was delivered on 20 February 2020: Bowers v Bowers [2020] NSWSC 109. Mr Bowers was successful to the extent that instead of a trust of one sixth of the estate, he received a lump sum payment of $750,000 from his mother’s estate. Relevantly to Mr Bowers’ complaint, the judgment of 20 February 2020 contained the following at [160]-[161]:

4. [9]

   After judgment was delivered, Mr Bowers wrote to Hallen J’s associate stating that the reference to him suffering from schizophrenia was incorrect and requesting that it be amended. His Honour acceded to this application and amended [160] and [161] of the judgment published on 5 March 2020 as follows (amendments in italics):

5. [10]

   The above change is reflected by an annotation on Caselaw which notes that changes were made to [160]-[161] of the judgment on 5 March 2020. A screenshot confirming this was annexed to the affidavit of Ms Maltabarow. Mr Bowers could not identify any other amendments made to that judgment.

6. [11]

   No appeal was ever brought in relation to the decision of Hallen J.

7. [12]

   On 28 January 2021, Mr Bowers filed a declaration making a complaint against Hallen J to the Commission. The complaint was in the following terms:

8. [13]

   The complaint was accompanied by a folder of documents totalling 1058 pages. In addition to the documents I have already described, the documents included a copy of the court file in the matter before Hallen J (without exhibits and subpoenaed material) and a copy of the full transcript of that hearing.

9. [14]

   On 30 March 2021, before he had received any response from the Commission, Mr Bowers filed a summons in this Court seeking orders in the nature of certiorari and mandamus for the Commission’s “constructive refusal” of his complaint.

10. [15]

    On 13 April 2021, Mr Bowers was informed by the Commission, by letter, that his complaint had been dismissed pursuant to subs 20(1)(e) and (h) of the Judicial Officers Act 1986 (NSW). That letter noted that the Commission was obliged to determine whether the judicial officer had behaved in a way amounting to judicial misconduct and stated that the Commission had carefully considered the judgment, transcripts, and submissions of the plaintiff. The Commission found as follows:

11. [16]

    On 14 April 2021, Mr Bowers filed an amended summons seeking review of that decision due to “constructive refusal” and “unreasonable delay” but without identifying any grounds of review as required by r 59.4(c) of the UCPR which provides that the summons must state with specificity the grounds on which the relief is sought.

12. [17]

    On 22 April 2021, a further amended summons was filed which in its entirety was in these terms:

13. [18]

    In her affidavit of 4 May 2021, Ms Maltabarow stated that on 21 April 2021 Mr Bowers emailed her stating that he would be “proceeding with both summonses on the ground of perversity: Taveli v Minister for Immigration (1989) 86 ALR 435 at 453; affirmed (1990) 23 FCR 162”.

14. [19]

    The Commission is constituted as a corporation and exercises the functions conferred or imposed on it under the Judicial Officers Act: s 5(1)-(2). The principal functions of the Commission relate to complaints against judicial officers.

15. [20]

    Under s 15(1) of the Judicial Officers Act any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer. Section 15(2) deals with the circumstances in which a complaint shall be dealt with other than by summary dismissal:

16. [21]

    Section 20 deals with the circumstances in which a complaint will be summarily dismissed:

17. [22]

    Section 21 provides that if a complaint is not summarily dismissed it must be referred to the Conduct Division or to the relevant head of jurisdiction.

18. [23]

    Mr Bowers relied on his email of 21 April 2021 and his oral submissions. In his email of 21 April 2021, he relied on the ground of “perversity” and the decision of Wilcox J in Taveli v Minister for Immigration, Local Government & Ethnic Affairs (1989) 86 ALR 435 where his Honour observed at 453:

19. [24]

    Mr Bowers addressed each of his four complaints against Hallen J in turn.

20. [25]

    The first ground alleged that Hallen J “excessively intervened” by questioning Mr Bowers during cross-examination and that his Honour made “pejorative comments” and bullied Mr Bowers’ counsel. In support of this ground Mr Bowers relied on Schedules A and B to his complaint to the Commission, said to reveal “pejorative comments, interruptions and denigrating comments”. Those schedules were extracts from the transcript of exchanges between Hallen J and either Mr Bowers’ counsel or Mr Bowers when he was in the witness box. Mr Bowers stated in his oral submissions that he relied on the whole of the transcript of the proceedings before Hallen J as context for those allegations.

21. [26]

    Mr Bowers relied on Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 and compared the judicial conduct in that matter with the present matter. In that matter a trial judge in the course of a hearing referred to certain expert medical witnesses for the Government Insurance Office as the “unholy trinity” of “doctors who think you can do a full week’s work without any arms or legs”. Those comments, combined with observations in his Honour’s judgment to similar effect, were held to constitute apprehended bias (at 573-4 per Brennan, Deane and Gaudron JJ). Mr Bowers submitted that the test to be applied for judicial misconduct should be the same test as for apprehended bias, that the comments of Hallen J were comparable to those of the trial judge in Vakauta v Kelly, and that those comments would constitute judicial misconduct.

22. [27]

    Mr Bowers also referred to Galea v Galea (1990) 19 NSWLR 263 in which the appellant alleged apprehended bias on the part of the trial judge due to questions posed to witnesses in cross-examination.

23. [28]

    When asked during oral submissions what error was relied upon in the decision of the Judicial Commission, Mr Bowers submitted that the Commission erred in finding that there “is or was available a satisfactory means of redress or of dealing with the complaint” such as an appeal due to apprehended bias (s 20(1)(e) of the Judicial Officers Act). He submitted that “any person [could] bring an action for both bias and separately for judicial misconduct”.

24. [29]

    Mr Bowers submitted that “shall” in s 20(1) did not mean “must” and that the Commission was not obliged to dismiss a complaint where there was another satisfactory means of redress. He did not rely on any authorities in support of that proposition. He submitted that “getting redress against misbehaviour by a judicial officer has nothing to do with winning a bias case. They are completely and utterly separate.”

25. [30]

    Mr Bowers’ second complaint alleged “obvious error” in his Honour’s judgment, stating that he was a schizophrenic (at [160]). The relevant paragraph, and the subsequent amendment of 5 March 2020 are extracted above at [8]-[9]. When it was suggested to Mr Bowers that the judgment now correctly recorded Dr Short’s initial diagnosis and his subsequent retraction of that diagnosis Mr Bowers submitted that:

26. [31]

    When I suggested to Mr Bowers that any error had been corrected and the original judgment was no longer published online, he submitted that it had been published to the lawyers and other parties in the case. He further submitted that his Honour had intentionally recorded that he was schizophrenic and only removed it when corrected by Mr Bowers.

27. [32]

    In relation to the third ground of complaint, being refused access to the court file, Mr Bowers submitted that:

28. [33]

    When asked whether he had eventually been granted access to the court file, for the purposes of including it in his complaint to the Judicial Commission, Mr Bowers conceded that it had eventually been provided but submitted that this had taken “some months”.

29. [34]

    Mr Bowers’ fourth ground of complaint alleged that Hallen J made “unknown changes” to the judgment between the versions of 20 February 2020 and 5 March 2020. In oral submissions Mr Bowers clarified that he only relied on the abovementioned change in relation to schizophrenia at [160]-[161] of that judgment.

30. [35]

    In both written and oral submissions, counsel for the Commission outlined the statutory role of the Commission to establish why the further amended summons should be summarily dismissed. I have adopted some of those submissions in my consideration below.

Consideration

1. [36]

   The principles in relation to summary dismissal are well established. Before a court would dismiss proceedings summarily, it must be satisfied that the proceedings are so obviously untenable that they cannot possibly succeed, manifestly groundless, or so manifestly faulty, such as not to admit of argument: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-129. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91, Dixon J observed that before summary intervention can be justified the case must be a very clear one and there must be no real question of fact or law to be determined.

2. [37]

   The Commission seeks that these proceedings be summarily dismissed under r 13.4(1)(b) of the UCPR. That rule is headed “Frivolous and vexatious proceedings” and relevantly provides that:

3. [38]

   As White JA (Meagher and Brereton JJA agreeing) observed in Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70], the purposes of r 13.4 include saving a defendant from the cost and delay of defending clearly untenable proceedings and protecting the interests of the public in “not having scarce judicial resources wasted in dealing with frivolous applications”.

4. [39]

   These are proceedings for judicial review. Mr Bowers invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in relation to the Commission’s decision to summarily dismiss his complaint. The question for this Court is whether Mr Bowers’ claim is so untenable that it cannot succeed.

5. [40]

   The only jurisdictional error articulated by Mr Bowers was “perversity”. The hearing proceeded on the basis that the jurisdictional error relied upon by Mr Bowers was legal unreasonableness given that he cited the passage in Taveli v Minister for Immigration, Local Government & Ethnic Affairs I have extracted above at [23]. More recently in Minister for Immigration and Citizenship v Li (2013) 249 CLR 323; [2013] HCA 18 Hayne, Kiefel and Bell JJ cited with approval judicial descriptions of legal unreasonableness including the following at [71]:

6. [41]

   Their Honours went on to state at [76]:

7. [42]

   The complaint could also be understood as being a claim of irrationality given that both ss 15 and 20 of the Judicial Officers Act require the Commission to be satisfied of certain matters before a complaint is summarily dismissed. A statutory requirement for a decision-maker to be "satisfied" about a matter before the decision-making power arises is a jurisdictional fact. Section 15(2) provides that the Commission shall not deal with a complaint other than by summary dismissal “unless it appears to the Commission” that subs (a) or (b) are satisfied. Similarly, s 20(1) provides that the Commission shall summarily dismiss the complaint “if it is of the opinion that” one or more of subs (a) to (h) exist.

8. [43]

   In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 the High Court held that an administrative decision could be reviewed on the basis that no rational or logical decision-maker could have arrived at the same decision on the same evidence. As Crennan and Bell JJ observed at [130]:

9. [44]

   Mr Bowers would need to establish that no rational or logical decision-maker could have arrived at the decision on the same evidence. Even having regard to the high level of certainty required in summary dismissal proceedings, I am satisfied that Mr Bowers’ claim is so obviously untenable that it cannot succeed for the following reasons.

10. [45]

    The Commission is required by statute to summarily dismiss complaints that fall within any of the subs of s 20(1) of the Act. In the present case the Commission made the decision under the following two subsections:

11. [46]

    In addition, s 15 of the Judicial Officers Act precludes consideration of complaints other than by summary dismissal unless the complaint, if substantiated, could justify either parliamentary consideration of the removal of the judicial officer from office, or warrant further examination on the ground that it may affect or may have affected the performance of judicial or official duties by the officer.

12. [47]

    Both ss 15 and 20 use the word “shall” which imposes a mandatory obligation on the Commission once the relevant opinion is formed: s 9(2), Interpretation Act 1987 (NSW). This statutory context means that even if there was a basis for Mr Bowers’ complaint, the Commission could not proceed with it unless it could justify parliamentary consideration of the removal of the judicial officer or warrant further examination on the grounds that it could affect his Honour’s performance of his duties, whether judicial or official. I am satisfied that the nature of Mr Bowers’ complaint required the Commission to summarily dismiss the complaint as it was incapable of satisfying either statutory criteria.

13. [48]

    The Commission addressed each of Mr Bowers separate complaints in its letter. In relation to the claim of excessive intervention, “pejorative comments and bullying”, the Commission noted that it had read the relevant transcript. It was satisfied that the questions and exchanges relied upon by Mr Bowers were to clarify answers and elicit further information. It was accepted that at times his Honour appeared to be impatient with Mr Bowers’ counsel, but that was in the context of case management and his Honour was entitled to do so in the circumstances. Further, the Commission stated that in relation to the request for the file, it was appropriate for his Honour to advise Mr Bowers to make the application in a manner so that it may be dealt with in court. The Commission further noted that Mr Bowers’ request for an amendment to the judgment was made and acted upon.

14. [49]

    In this Court Mr Bowers relied upon the decisions in Vakuata v Kelly and Galea v Galea. The former is far removed from the present case and in the latter case Kirby A-CJ (Priestley and Meagher JJA agreeing) held that the questioning was not sufficient to constitute apprehended bias and observed at 279:

15. [50]

    During his submissions in this Court Mr Bowers asserted that judges are not permitted to interrupt or speak over counsel or litigants. That submission was not confined to the transcript before Hallen J but extended to my attempts to get Mr Bowers to focus on certain matters. Any assertion that judges are not permitted to interrupt counsel or litigants to invite them to focus on relevant matters or to better understand their submissions is incorrect and misapprehends the Court’s obligations in relation to case management. In NSW those obligations are imposed under the Civil Procedure Act 2005 (NSW) and the principles derived from decisions such as Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27. In order to comply with these obligations it may often be necessary for judicial officers to stop counsel or litigants from making irrelevant submissions that do not assist the Court. As discussed by Matthew Groves, ‘Excessive judicial intervention’ (2021) 50 Australian Bar Review 139:

16. [51]

    As for the Commission’s summary dismissal of Mr Bowers’ complaint under s 20(1)(e), it is to be noted that the words “is or was” (in relation to available means of redress) provide that the availability of alternate redress includes that which has lapsed by the effluxion of time or has been waived by Mr Bowers.

17. [52]

    The evidence discloses that Mr Bowers emailed an unfiled notice of motion to Hallen J’s chambers on 18 February 2020 seeking his recusal on the basis of apprehended bias, after the hearing had concluded. On 20 February 2020, Hallen J delivered an ex tempore judgment dealing with that belated application. His Honour stated that by that time Mr Bowers had “waived any right to make, and to press, any such application”. His Honour concluded that it was not necessary to deal with the unfiled notice of motion. Furthermore, any alleged excessive intervention could have been a basis for seeking appellate relief. All of the authorities referred to by Mr Bowers concerned appeals on that basis. No appeal was ever lodged by Mr Bowers.

18. [53]

    As to the claim that Hallen J had misstated the expert psychiatric evidence in his judgment, Mr Bowers had already availed himself of an appropriate means of redress in relation to that complaint in that the amendment has already been made.

19. [54]

    Finally, in relation to the complaint concerning access to the court file, the evidence discloses that Mr Bowers’ counsel withdrew the first application for access to the court file. This is apparent on the transcript. Again, Mr Bowers chose not to pursue an available satisfactory means of redress. In any event, by the time of his complaint to the Commission he had been provided with the file which he was then able to provide to the Commission in support of his complaint.

20. [55]

    Although a fourth complaint was made to the Commission alleging “unknown changes” to the judgment, as I have already stated above, the annotation in Caselaw refers only to changes made to [160]-[161] on 5 March 2020 and Mr Bowers did not ultimately rely on anything beyond that complaint.

21. [56]

    I am satisfied that Mr Bowers’ claim that the Commission’s decision to summarily dismiss his complaint under s 20(1)(e) of the Judicial Officers Act was unreasonable is so untenable that it cannot possibly succeed.

22. [57]

    As for summary dismissal of the complaint under 20(1)(h) of the Judicial Officers Act, I do not accept Mr Bowers’ submission that the Commission was required to identify “all the circumstances” relevant to that finding. That subsection is directed towards circumstances where the conduct is incapable under any circumstances of constituting judicial misconduct or affecting the performance of a judge’s duties. Given that I have already stated that the present complaint, even if proven, could not satisfy that statutory test, I am also satisfied that Mr Bowers’ claim that the Commission’s decision to summarily dismiss his complaint under s 20(1)(h) of the Judicial Officers Act was unreasonable is so untenable that it cannot possibly succeed.

23. [58]

    I make the following orders:

    1. (1)

       The plaintiff’s summons is dismissed pursuant to r 13.4(1)(b), Uniform Civil Procedure Rules 2005 (NSW).

    2. (2)

       The plaintiff is to pay the defendant’s costs of the motion and the proceedings.